Exhibit 8.1
[Letterhead of Cravath, Swaine & Xxxxx]
February 22, 2001
Amended and Restated Agreement and Plan of Merger,
Dated as of January 26, 2001,
Among Xxxxxxx & Xxxxxxx, HP Merger Sub, Inc. and
Heartport, Inc.
Ladies and Gentlemen:
We have acted as counsel for Xxxxxxx & Xxxxxxx, a New Jersey corporation
("Xxxxxxx & Xxxxxxx"), in connection with the proposed merger (the "Merger")
of HP Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary
of Xxxxxxx & Xxxxxxx ("Sub"), with and into Heartport, Inc., a Delaware
corporation ("Heartport"), pursuant to an Amended and Restated Agreement and
Plan of Merger, dated as of January 26, 2001, among Xxxxxxx & Xxxxxxx, Sub and
Heartport (the "Merger Agreement").
In providing our opinion, we have examined the Merger Agreement, the
registration statement on Form S-4 (which contains a proxy statement/
prospectus) (the "Registration Statement"), filed with the Securities and
Exchange Commission (the "SEC") on February 22, 2001, and such other documents
and corporate records as we have deemed necessary or appropriate for purposes
of our opinion. In addition, we have assumed that (i) the Merger will be
consummated in accordance with the provisions of the Merger Agreement and the
Registration Statement, (ii) the statements concerning the Merger set forth in
the Merger Agreement and the Registration Statement are true, complete and
correct, (iii) the representations made by Xxxxxxx & Xxxxxxx and Heartport, in
their respective letters delivered to us for purposes of this opinion (the
"Representation Letters") are true, complete and correct and will remain true,
complete and correct at all times up to and including the Effective Time (as
defined in the Merger Agreement) and (iv) any representations made in the
Representation Letters "to the knowledge of" or similarly qualified are
correct without such qualification. If any of the above described assumptions
are untrue for any reason or if the Merger is consummated in a manner that is
different from the manner in which it is described in the Merger Agreement or
the Registration Statement, our opinion as expressed below may be adversely
affected and may not be relied upon.
Based upon the foregoing, we are of opinion that the discussion contained
in the Registration Statement under the caption "The Merger--Material United
States Federal Income Tax Consequences of the Merger," subject to the
limitations, qualifications and assumptions described therein, sets forth the
material United States Federal income tax considerations applicable to the
Company's stockholders in the Merger. Because this opinion is being delivered
prior to the Effective Time, it must be considered prospective and dependent
on future events.
Our opinion is based on current provisions of the Internal Revenue Code
of 1986, as amended, Treasury Regulations promulgated thereunder, published
pronouncements of the Internal Revenue Service and case law, any of which may
be changed at any time with retroactive effect. Any change in applicable laws
or the facts and circumstances surrounding the Merger, or any inaccuracy in
the statements, facts, assumptions or representations upon which we have
relied, may affect the continuing validity of our opinion as set forth herein.
We assume no responsibility to inform you of any such change or inaccuracy
that may occur or come to our attention. Finally, our opinion is limited to
the tax matters specifically covered hereby, and we have not been asked to
address, nor have we addressed, any other tax consequences of the Merger.
This opinion is being furnished to you solely for its use in connection
with the Registration Statement. We consent to the filing of this opinion as
Exhibit 8.1 to the Registration Statement and to the reference to our firm
name therein. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules or regulations of the SEC
promulgated thereunder.
Very truly yours,
/s/ Cravath, Swaine & Xxxxx
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Office of General Counsel
